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HIGH COURT MALAYA KUALA LUMPUR
PARKUNAN ACHULINGAM – Appellant
Versus
KALAIYARASY PERIASAMY – Respondent
[Divorce Petition No: S8-33-55-2003]
[1] Parties have reached settlement and terms of settlement by consent are as in encl (29). The remaining issues to be decided in the petition are:
(i) The issue of maintenance;
(ii) A claim of share from the petitioner's EPF contibutions;
(iii) The educational expenses of the children of the marriage.
[2] The respondent wife in her cross petition has prayed, inter alia, for the following prayers which remain for the determination of this court, namely:
(a) that the petitioner husband shall pay the respondent wife the sum of RM2,000 a month as maintenance for the respondent wife, which maintenance shall be payable in advance on or before the 5th day of each month;
(b) that the petitioner husband shall pay the respondent wife arrears of maintenance for (i) aforesaid from May 2001;
(c) that the petitioner husband shall pay the respondent wife the sum of RM3,000 a month as maintenance for the said children of the marriage, which maintenance shall be payable in advance on or before the 5th day of each month until the said children shall have attained the age of 18 years;
(d) that the sums payable for maintenance under prayers (i) and (iii) shall be increased at the end of every (12) month period, the first of such increase to commence on the thirteenth (13) month from the date of the order, such increase to be an amount equal to 5% of the maintenance payable for the 12 months immediately preceding the increase;
(e) that the petitioner husband shall pay for all the educational expenses for the said children of the marriage up to and including tertiary and/or University education, notwithstanding that the said children shall have attained the age of 18 years;
(f) that the respondent wife shall be entitled to one half share (1/2) of the monies standing in the petitioner's provident fund.
[3] In determining the amount of maintenance to be paid, the assessment is based primarily on the means and the needs of the parties. The needs of the party seeking maintenance is the crucial factor for providing the maintenance. In deciding the quantum of maintenance, the capacity of the husband, his ability to pay and the realities of the husband or parties financial position should be taken into account. One other factor, the potential earning of the applicant should also be considered. The power to award maintenance to the wife is clearly provided by s 77 of the Law Reform (Marriage & Divorce) Act 1976 ("LRA"). Section 78 of the LRA provides that in assessing the amount of maintenance to be paid by a man to his wife or former wife, "the court shall base it's assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage." The assessment of the maintenance payable with respect to the children is provided for by s 92 of the LRA which states that "it shall be the duty of a parent to maintain his children, whether they are in his custody or in the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to this means and station in life or by paying the costs thereof." Section 93 of the LRA further provides that:
(1) The court may at any time order a man to pay maintenance for the benefit of his child:
(a) if he has refused or neglected reasonably to provide for the child;
(b) if he has deserted his wife and the child is in her charge;
(c) during the pendency of any matrimonial proceedings; or
(d) when making or subsequent to the making of an order placing the child in the custody of any other person.
(2) The court shall have the corresponding power to order a woman to pay or contribute towards the maintenance of her child where it is satisfied that having regard to her means it is reasonable so to order.
[4] Therefore it is clear that the husband has
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